I was in an interesting discussion today with colleagues on whether there has been a proliferation of the citation of unreported judgments in judicial decisions in Canada and whether this was a good or bad thing.

The context is this: in the good old days of print case law reporters (e.g., Dominion Law Reports or Ontario Reports) when life was much simpler, qualified editors chose to publish only the significant or important decisions. As such, you knew that when lawyers and judges cited precedent to print case law reporters there was some semblance of authority or quality in the precedent. With the increase of online, unreported judgment that can be found by keyword searching, the argument would be that there is (or may be) an increase in less significant or unimportant decisions being relied upon as judicial precedent thereby (so the argument goes) “dumbing down” the quality of legal judgments and analysis. (Although I have over-simplified the issue, I think there may be some truth to these concerns).

As has likely been previously mentioned on SLAW, the English courts have established restrictions on the use of unreported decisions in the Court of Appeal, Civil Division (Practice Direction: Authorities, [1996] 1 W.L.R. 854, which states in part):

Leave to cite unreported cases would not be granted unless counsel could assure the court there was a relevant statement of legal authority not found in reported authority, as opposed to an illustration of established legal principle.

Mr Lyndon-Stanford cited to us in his written submissions 21 cases of which eight quite rightly have not been reported. More unreported cases were produced at the hearing. The Court must protect itself against the citation of such a mass of authorities. It has taken power to do so by the Practice Statement of Sir Thomas Bingham M.R., reported at [l996] 1 W.L.R. 854 . . . .

After today yet another case will be available in this field. In truth, the principles are plain, though illustrations of their application are limitless. It should not be assumed that the Court will be ready to look without justification at unreported authorities.

Would this fly in a Canadian court? Should it fly?

My inclination is to not try to restrict counsel and what they may cite but instead leave it to the judge to sanction counsel with a negative costs award if the counsel was wasting the courts time with inappropriate precedents.

I think a bigger challenge is of course the dearth of official print case law reporters in Canada and the (eventual) demise of printed case law reporters all together. As such, I don’t think this type of restriction would work here and that we instead must rely on the discretion of counsel and the courts.

Comments

Ted, I was interested to read your comments. This is an issue I have been discussing over the last several years with research lawyers, law school faculty and librarians and have heard frequently that many young lawyers and students do not know what a reported decision is. It has been disconcerting to learn that students are now rarely taught the significance of a reported decision – a case from the Dominion Law Reports is viewed the same as any other and DLR is just another cite.

But, take heart. Notwithstanding the decline in the use of print reports, the reported decisions will remain available – these selected decisions, with the headnote and other editorial enhancements, continue to exist in the online evironment. As the law report is not about the format, print vs online, but rather the selection by the expert and the value of the headnote, reported decisions may contiune to play a role – but only if the lawyers and judges of tomorrow see the value in them.

I’ve seen cases reported years after their release, so it is dangerous to restrict precedent to reported decisions only. One should accept wisdom wherever it can be found. The decision either bears scrutiny or it doesn’t.

It’s also dangerous to read too much into the implications of a decision being reported. Professor Jay McLeod, rest his soul, was editor of the RFL series. He claimed he published a decision once just because it was obviously wrongly decided. To his surprise, the decision was applied in subsequent cases and he had to revisit the case with a case note in a later annotation.

The legal profession has now had access to the full text of judgments online, including those that have been reported in print and those that have not, for over two decades. It is not new.

In the same period, the means of identifying cases online that include “relevant statements of legal authority” as well as those that illustrate “an established legal principle” have increased beyond measure. All cases selected for reporting in print are first reported online. Almost all of the online services now have some form of classification system, as well as case summaries, and case and statute citators that enable a researcher to efficiently identify cases of value, even more efficiently than their print ancestors.

In the old days, when the Dominion Law Reports and the Ontario Reports dominated the scene, only a small proportion of cases were reported and those selected were usually limited to a handful of legal subjects. Topical law reports were launched to critical and commercial acclaim because they addressed some of the deficiencies of old style case law reporting. Online reporting of all cases simply takes case law reporting to the next level.

The real issue is faced by the courts is how lawyers select the cases they plan to use in court and the number and quality of those cases. Personally, I believe that this is a matter of professional training and has little or nothing to do with the number of cases that are made available online .

As I have observed before, it is impossible to make an effective on-line search for concepts as they may be developed in the cases; it is equally impossible to search for expressions of the attitude that a court does (or should bring) to something like, say, interpretation.

Key-word searching is inherently unable to separate the wheat from the chaff or the bad from the good. Moreover—and this is a point that I would like to raise in a subsequent post—the restriction of research to what is available on-line (and using key-word searching) will not provide a basis for saying whether a case is good or bad. Yes, the Court of Appeal or the Supreme Court may reverse, overrule or disparage a previous case, but, if the case is not appealed, it’s just there.

Just recently I came across a statement (NRF Distributors Inc. v. Starwood Manufacturing Inc., 2009 CanLII 3786 (ON S.C.), para. 46) that the representation of the agent that he has authority was a sufficient basis for the conclusion that the agent had apparent authority. (I’m sorry, I know that Simon has patiently told me how to put a link in a Comment, but I have forgotten and don’t want to take the time now to find his gentle instructions.) Though the trial judge (a former law professor) also quoted correct statements of the rule (he appears, however, to have misunderstood the cases he said he relied on), a more incorrect statement of the law would be hard to believe. If you want a real doozer of a hopelessly and dangerously wrong case, look at Kent Trade and Finance Inc. v. JPMorgan Chase Bank, 2008 FCA 399 (CanLII).

And then, of course, there’s Shekhdar v. K&M Engineering and Consulting Corp., 2004 CanLII 19241 (ON S.C.), which, though reversed, 2006 CanLII 17742, led subsequent judges, in Skyway Canada Ltd. v. Clara Industrial Services Ltd., 2005 CanLII 42253 (ON S.C.), para, 23, and Chateau Des Charmes Wines Ltd. v. Sabate, USA, Inc., 2005 CanLII 39869 (ON S.C.), para. 28, to say, “A forum selection clause will not induce a court to take jurisdiction if the action has no real and substantial connection with the jurisdiction”. A statement that would make a lot of careful drafters of all kinds of common commercial agreements more than a little anxious. Do we now make Ontario the laughing-stock of the developed world by having to qualify every transaction opinion to say that the parties’ attornment clause may not be enforceable? Or do we do (as we did with the original judgment of Matlow J.) simply ignore statements of the law that the Court of Appeal will almost certainly correct if given the opportunity.

It’s worth pointing out that you do not get to the endorsement of the Court of Appeal from the CanLII entry for the trial judgment; you can only get to it from a search under the parties’ names. Of course, since the Court of Appeal just made an endorsement, it was not reported. In any case, the extreme brevity of the court’s reasons would not bring home to a lawyer or another judge, looking now at three cases, the fact that the quotation is not a correct statement of the law. It’s also possible that the general ignorance of many lawyers of the whole topic of conflicts contributed to what I have just described.

My argument is that the wilderness of single instances (that is now expanding both in scope and wildness) cannot be controlled so that the dross can be separated from the gold. I am sure that others could show as egregious examples as these. I do not know what to do. It is clear, I think, that in an important sense we are not able to control the proliferation of statements that are plainly bad law and that inability comes with a cost.

We could, of course, encourage lawyers and judges to buy and use textbooks—I know a really good text every lawyer should have at his or her desk all the time!

Angela Swan’s comments highlight the essential role of text books in the conduct of legal research. At one time, the text book was the starting point in legal research followed by case law. It is the text book that identifies the key cases.

Recent overall declines in the unit sales of new texts and new editions of texts suggest that demand for them has lessened. This has happened at the same time as the need for texts has grown.

Angela Swan really does have a “really good text every lawyer should have on his or her desk all the time”.